[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1090 Introduced in Senate (IS)]

<DOC>






104th CONGRESS
  1st Session
                                S. 1090

To amend section 552 of title 5, United States Code (commonly known as 
   the Freedom of Information Act), to provide for public access to 
      information in an electronic format, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                July 28 (legislative day, July 10), 1995

   Mr. Leahy (for himself, Mr. Brown, and Mr. Kerry) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
To amend section 552 of title 5, United States Code (commonly known as 
   the Freedom of Information Act), to provide for public access to 
      information in an electronic format, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Electronic Freedom of Information 
Improvement Act of 1995''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--The Congress finds that--
            (1) the purpose of the Freedom of Information Act is to 
        require agencies of the Federal Government to make certain 
        agency information available for public inspection and copying 
        and to establish and enable enforcement of the right of any 
        person to obtain access to the records of such agencies 
        (subject to statutory exemptions) for any public or private 
        purpose;
            (2) since the enactment of the Freedom of Information Act 
        in 1966, and the amendments enacted in 1974 and 1986, the 
        Freedom of Information Act has been a valuable means through 
        which any person can learn how the Federal Government operates;
            (3) the Freedom of Information Act has led to the 
        disclosure of waste, fraud, abuse, and wrongdoing in the 
        Federal Government;
            (4) the Freedom of Information Act has led to the 
        identification of unsafe consumer products, harmful drugs, and 
        serious health hazards;
            (5) Government agencies increasingly use computers to 
        conduct agency business and to store publicly valuable agency 
        records and information; and
            (6) Government agencies should use new technology to 
        enhance public access to agency records and information.
    (b) Purposes.--The purposes of this Act are to--
            (1) foster democracy by ensuring public access to agency 
        records and information;
            (2) improve public access to agency records and 
        information;
            (3) ensure agency compliance with statutory time limits; 
        and
            (4) maximize the usefulness of agency records and 
        information collected, maintained, used, retained, and 
        disseminated by the Federal Government.

SEC. 3. PUBLIC INFORMATION AVAILABILITY.

    Section 552(a)(1) of title 5, United States Code, is amended--
            (1) in the matter before subparagraph (A) by inserting ``by 
        computer telecommunications, or if computer telecommunications 
        means are not available, by other electronic means,'' after 
        ``Federal Register'';
            (2) by striking out ``and'' at the end of subparagraph (D);
            (3) by redesignating subparagraph (E) as subparagraph (F); 
        and
            (4) by inserting after subparagraph (D) the following new 
        subparagraph:
            ``(E) a complete list of all statutes that the agency head 
        or general counsel relies upon to authorize the agency to 
        withhold information under subsection (b)(3) of this section, 
        together with a specific description of the scope of the 
        information covered; and''.

SEC. 4. MATERIALS MADE AVAILABLE IN ELECTRONIC FORMAT AND INDEX OF 
              RECORDS MADE AVAILABLE TO THE PUBLIC.

    Section 552(a)(2) of title 5, United States Code, is amended--
            (1) in the matter before subparagraph (A) by inserting ``, 
        including, within 1 year after the date of the enactment of the 
        Electronic Freedom of Information Improvement Act of 1995, by 
        computer telecommunications, or if computer telecommunications 
        means are not available, by other electronic means,'' after 
        ``copying'';
            (2) in subparagraph (B) by striking out ``and'' after the 
        semicolon;
            (3) in subparagraph (C) by inserting ``and'' after the 
        semicolon;
            (4) by adding after subparagraph (C) the following new 
        subparagraphs:
                    ``(D) an index of all major information systems 
                containing agency records regardless of form or format 
                unless such an index is provided as otherwise required 
                by law;
                    ``(E) a description of any new major information 
                system with a statement of how such system shall 
                enhance agency operations under this section;
                    ``(F) an index of all records which are made 
                available to any person under paragraph (3) of this 
                subsection; and
                    ``(G) copies of all records, regardless of form or 
                format, which because of the nature of their subject 
                matter, have become or are likely to become the subject 
                of subsequent requests for substantially the same 
                records under paragraph (3) of this subsection;'';
            (5) in the second sentence by striking out ``or staff 
        manual or instruction'' and inserting in lieu thereof ``staff 
        manual, instruction, or index or copies of records, which are 
        made available under paragraph (3) of this subsection''; and
            (6) in the third sentence by inserting ``and the extent of 
        such deletion shall be indicated on the portion of the record 
        which is made available or published at the place in the record 
        where such deletion was made'' after ``explained fully in 
        writing''.

SEC. 5. HONORING FORMAT REQUESTS.

    Section 552(a)(3) of title 5, United States Code, is amended by--
            (1) inserting ``(A)'' after ``(3)'';
            (2) striking out ``(A) reasonably'' and inserting in lieu 
        thereof ``(i) reasonably'';
            (3) striking out ``(B)'' and inserting in lieu thereof 
        ``(ii)''; and
            (4) adding at the end thereof the following new 
        subparagraphs:
            ``(B) An agency shall, as requested by any person, provide 
        records in any form or format in which such records are 
        maintained by that agency.
            ``(C) An agency shall make reasonable efforts to search for 
        records in electronic form or format and provide records in the 
        form or format requested by any person, including in an 
        electronic form or format, even where such records are not 
        usually maintained but are available in such form or format.''.

SEC. 6. DELAYS.

    (a) Fees.--Section 552(a)(4)(A) of title 5, United States Code, is 
amended by adding at the end thereof the following new clause:
    ``(viii) If at an agency's request, the Comptroller General 
determines that the agency annually has either provided responsive 
documents or denied requests in substantial compliance with the 
requirements of paragraph (6)(A), one-half of the fees collected under 
this section shall be credited to the collecting agency and expended to 
offset the costs of complying with this section through staff 
development and acquisition of additional request processing resources. 
The remaining fees collected under this section shall be remitted to 
the Treasury as general funds or miscellaneous receipts.''.
    (b) Payment of the Expenses of the Person Making a Request.--
Section 552(a)(4)(E) of title 5, United States Code, is amended by 
adding at the end thereof the following: ``The court may assess against 
the United States all out-of-pocket expenses incurred by the person 
making a request, and reasonable attorney fees incurred in the 
administrative process, in any case in which the agency has failed to 
comply with the time limit provisions of paragraph (6) of this 
subsection. In determining whether to award such fees and expenses, a 
court should consider whether an agency's failure to comply with 
statutory time limits was not warranted and demonstrated bad faith or 
was otherwise unreasonable in the context of the circumstances of the 
particular request.''.
    (c) Demonstration of Circumstances for Delay.--Section 552(a)(4)(E) 
of title 5, United States Code, is further amended--
            (1) by inserting ``(i)'' after ``(E)''; and
            (2) by adding at the end thereof the following new clause:
            ``(ii) Any agency not in compliance with the time limits 
        set forth in this subsection shall demonstrate to a court that 
        the delay is warranted under the circumstances set forth under 
        paragraph (6) (B) or (C) of this subsection.''.
    (d) Period for Agency Decision To Comply With Request.--Section 
552(a)(6)(A)(i) is amended by striking out ``ten days'' and inserting 
in lieu thereof ``twenty days''.
    (e) Agency Backlogs.--Section 552(a)(6)(C) of title 5, United 
States Code, is amended by inserting after the second sentence the 
following: ``As used in this subparagraph, the term `exceptional 
circumstances' means circumstances that are unforeseen and shall not 
include delays that result from a predictable workload, including any 
ongoing agency backlog, in the ordinary course of processing requests 
for records.''.
    (f) Notification of Denial.--The last sentence of section 
552(a)(6)(C) of title 5, United States Code, is amended to read: ``Any 
notification of any full or partial denial of any request for records 
under this subsection shall set forth the names and titles or positions 
of each person responsible for the denial of such request and the total 
number of denied records and pages considered by the agency to have 
been responsive to the request.''.
    (g) Multitrack FIFO Processing and Expedited Access.--Section 
552(a)(6) of title 5, United States Code, is amended by adding at the 
end thereof the following new subparagraphs:
            ``(D) (i) Each agency shall adopt a first-in, first-out 
        (hereafter in this subparagraph referred to as FIFO) processing 
        policy in determining the order in which requests are 
        processed. The agency may establish separate processing tracks 
        for simple and complex requests using FIFO processing within 
        each track.
            ``(ii) For purposes of such a multitrack system--
                    ``(I) a simple request shall be a request requiring 
                10 days or less to make a determination on whether to 
                comply with such a request; and
                    ``(II) a complex request shall be a request 
                requiring more than 10 days to make a determination on 
                whether to comply with such a request.
            ``(iii) A multitrack system shall not negate a claim of due 
        diligence under subparagraph (C), if FIFO processing within 
        each track is maintained and the agency can show that it has 
        reasonably allocated resources to handle the processing for 
        each track.
            ``(E) (i) Each agency shall promulgate regulations, 
        pursuant to notice and receipt of public comment, providing 
        that upon receipt of a request for expedited access to records 
        and a showing by the person making such request of a compelling 
        need for expedited access to records, the agency shall 
        determine within 5 days (excepting Saturdays, Sundays, and 
        legal public holidays) after the receipt of such a request, 
        whether to comply with such request. No more than one day after 
        making such determination the agency shall notify the person 
        making a request for expedited access of such determination, 
        the reasons therefor, and of the right to appeal to the head of 
        the agency. A request for records to which the agency has 
        granted expedited access shall be processed as soon as 
        practicable. A request for records to which the agency has 
        denied expedited access shall be processed within the time 
        limits under paragraph (6) of this subsection.
            ``(ii) A person whose request for expedited access has not 
        been decided within 5 days of its receipt by the agency or has 
        been denied shall be required to exhaust administrative 
        remedies. A request for expedited access which has not been 
        decided may be appealed to the head of the agency within 7 days 
        (excepting Saturdays, Sundays, and legal public holidays) after 
        its receipt by the agency. A request for expedited access that 
        has been denied by the agency may be appealed to the head of 
        the agency within 2 days (excepting Saturdays, Sundays, and 
        legal public holidays) after the person making such request 
        receives notice of the agency's denial. If an agency head has 
        denied, affirmed a denial, or failed to respond to a timely 
        appeal of a request for expedited access, a court which would 
        have jurisdiction of an action under paragraph (4)(B) of this 
        subsection may, upon complaint, require the agency to show 
        cause why the request for expedited access should not be 
        granted, except that such review shall be limited to the record 
        before the agency.
            ``(iii) The burden of demonstrating a compelling need by a 
        person making a request for expedited access may be met by a 
        showing, which such person certifies under penalty of perjury 
        to be true and correct to the best of such person's knowledge 
        and belief, that failure to obtain the requested records within 
        the timeframe for expedited access under this paragraph would--
                    ``(I) threaten an individual's life or safety;
                    ``(II) result in the loss of substantial due 
                process rights and the information sought is not 
                otherwise available in a timely fashion; or
                    ``(III) affect public assessment of the nature and 
                propriety of actual or alleged governmental actions 
                that are the subject of widespread, contemporaneous 
                media coverage.''.

SEC. 7. COMPUTER REDACTION.

    Section 552(b) of title 5, United States Code, is amended by 
inserting before the period in the sentence following paragraph (9) the 
following: ``, and the extent of such deletion shall be indicated on 
the released portion of the record at the place in the record where 
such deletion was made''.

SEC. 8. DEFINITIONS.

    Section 552(f) of title 5, United States Code, is amended to read 
as follows:
    ``(f) For purposes of this section--
            ``(1) the term `agency' as defined in section 551(1) of 
        this title includes any executive department, military 
        department, Government corporation, Government controlled 
        corporation, or other establishment in the executive branch of 
        the Government (including the Executive Office of the 
        President), or any independent regulatory agency;
            ``(2) the term `record' means all books, papers, maps, 
        photographs, machine-readable materials, or other information 
        or documentary materials, regardless of physical form or 
        characteristics; and
            ``(3) the term `search' means a manual or automated review 
        of agency records that is conducted for the purpose of locating 
        those records which are responsive to a request under 
        subsection (a)(3)(A) of this section.''.